US Congresspeople tell ICANN to ignore GAC “interference”
A bispartisan group of US Congresspeople have called on ICANN to stop bowing to Governmental Advisory Committee meddling.
Showing characteristic chutzpah, the governmental body advises ICANN that advice from governments should be viewed less deferentially in future, lest the GAC gain too much power.
The members wrote (pdf):
Recent reports indicate that the GAC has sought to increase its power at the expense of the multistakeholder system. Although government engagement in Internet governance is prudent, we are concerned that allowing government interference threatens to undermine the multistakeholder system, increasing the risk of government capture of the ICANN Board.
The letter was signed by 11 members of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, which is one of the House committees that most frequently hauls ICANN to Capitol Hill to explain itself.
Most of the signatories are from the Republican majority, but some are Democrats.
It’s not entirely clear where they draw the line between “engagement” and “interference”.
The letter highlights two specific pieces of GAC input that the signatories seem to believe constitute interference.
First, the GAC’s objection to Amazon’s application for .amazon. The letter says this objection came “without legal basis” and that ICANN “succumbed to political pressure” when it rejected the application.
In reality, the GAC’s advice was consensus advice as envisaged by the Application Guidebook rules. It was the US government that succumbed to political pressure, when it decided to keep its mouth shut and allow the rest of the GAC to reach consensus.
The one thing the GAC did wrong was filing its .amazon objection outside of the window envisaged by the Guidebook, but that’s true of almost every piece of advice it’s given about new gTLD applications.
Second, the Congresspeople are worried that the GAC has seized for its members the right to ban the two-letter code representing their country from any new gTLD of their choosing.
I’ve gone into some depth into how stupid and hypocritical this is before.
The letter says that it has “negative implications for speech and the world economy”, which probably has a grain of truth in it.
But does it cross the line from “engagement” to “interference”?
The Applicant Guidebook explicitly “initially reserved” all two-letter strings at the second level in all new gTLDs.
It goes on to say that they “may be released to the extent that Registry Operator reaches agreement with the government and country-code manager.”
While the rule is pointless and the current implementation convoluted, it comes as a result of the GAC engaging before the new gTLD program kicked off. It was something that all registries were aware of when they applied for their gTLDs.
However, the GAC’s more recent behavior on the two-letter domain subject has been incoherent and looks much more like meddling.
At the ICANN meeting in Los Angeles last October, faced with requests for two-character domains to be released, the GAC issued formal advice saying it was “not in a position to offer consensus advice on the use of two-character second level domain names”.
ICANN’s board of directors accordingly passed a resolution calling for a release mechanism to be developed by ICANN staff.
But by the time February ICANN meeting rolled around, it had emerged that registries’ release requests had been put on hold by ICANN due to letters from the GAC.
The GAC then used its Singapore communique to advise ICANN to “amend the current process… so that relevant governments can be alerted as requests are initiated.” It added that “Comments from relevant governments should be fully considered.”
ICANN interpreted “fully considered” to mean an effective veto, which has led to domains such as it.pizza and fr.domains being banned.
So it does look like thirteenth-hour interference but that’s largely because the GAC is often incapable of making its mind up, rarely talks in specifics, and doesn’t meet frequently enough to work within timelines set by the rest of the community.
However, while there’s undoubtedly harm from registries being messed around by the GAC recently, governments don’t seem to have given themselves any powers that they did not already have in the Applicant Guidebook.
Canada shrugs over .sucks
The Canadian trade regulator has sent ICANN a big old “Whatever” in response to queries about the legalities of .sucks.
The response, sent by Industry Canada’s deputy minister John Knubley yesterday, basically says if the intellectual property lobby doesn’t like .sucks it can always take its complaints to the courts.
Other than opening and closing paragraphs of pleasantries, this is all Knubley’s letter (pdf) says:
Canada’s laws provide comprehensive protections for all Canadians. Canada has intellectual property, competition, criminal law and other relevant legal frameworks in place to protect trademark owners, competitors, consumers and individuals. These frameworks are equally applicable to online activities and can provide recourse, for example, to trademark owners concerned about the use of the dotSucks domains, provided that trademark owners can demonstrate that the use of dotSucks domains infringes on a trademark. Intellectual property rights are privately held and are settled privately by the courts.
There’s not much to go on in there; it could quite easily be a template letter.
But it seems that Vox Populi Registry has been cleared to go ahead with the launch of .sucks, despite IP owner complaints, at least as far as the US and Canadian regulators are concerned.
The Federal Trade Commission was equally noncommittal in its response to ICANN two weeks ago.
Vox Populi is based in Canada. It’s still not entirely clear why the FTC was asked its opinion.
ICANN had asked both agencies for comment on .sucks’ legality after its Intellectual Property Constituency raised concerns about Vox Pop’s “predatory” pricing.
Pricing for .sucks names in sunrise starts at around $2,000.
ICANN told DI in April that it was in “fact finding” mode, trying to see if Vox Pop was in breach of any laws or its Registry Agreement.
The .sucks domain is due to hit general availability one week from now, June 19, with a suggested retail price of $250 a year.
If anything, the $250 says much more about Vox Pop’s business model than the sunrise fees, in my opinion.
ICANN Compliance probing Hunger Games domain
ICANN’s Compliance department is looking into whether Donuts broke the rules by activating a domain name for the forthcoming The Hunger Games movie.
Following up from the story we posted earlier today, ICANN sent DI the following statement:
We are well aware of this issue and are addressing it through our normal compliance resolution process. We attempt to resolve compliance matters through a collaborative informal resolution process, and we do not comment on what happens during the informal resolution phase.
At issue is whether Donuts allowed the movie’s marketers to launch thehungergames.movie before the new gTLD’s mandatory 90-day “controlled interruption” phase was over.
Under a strict reading of the CI rules, there’s something like 10 to 12 days left before Donuts is supposed to be allowed to activate any .movie domain except nic.movie.
Donuts provided the following statement:
This is a significant step forward in the mainstream usage of new domains. One of the core values of the new gTLD program is the promotion of consumer choice and competition, and Donuts welcomes this contribution to the program’s success, and to the promotion of the film. We don’t publicly discuss specific matters related to ICANN compliance.
I imagine what happened here is that Donuts got an opportunity to score an anchor tenant with huge visibility and decided to grasp it with both hands, even though distributor Lion’s Gate Entertainment’s (likely immovable) launch campaign schedule did not exactly chime with its own.
It may be a technical breach of the ICANN rules on name collisions — which many regard as over-cautious and largely unnecessary — but it’s not a security or stability risk.
Of course, some would say it also sets a precedent for other registries to bend the rules if they score big-brand backing in future.
.wine no longer blocked after EU drops complaint
Donuts and ICANN are currently in the process of signing new gTLD agreements for .wine and .vin, after the European Union and wine sellers dropped objections.
As of today, both gTLDs are “In Contracting” rather than “On Hold”, according to ICANN’s web site.
ICANN revealed earlier this week that the European Union and various wine trade associations have both dropped their Cooperative Engagement Process complaints.
CEP is less formal precursor to a much more expensive and lawyer-hungry Independent Review Process complaint.
With the CEPs out of the way, Donuts is now free to sign its contracts.
Donuts won the auction for .wine back in November, but its application was frozen due to ongoing arguments about the protection of “geographic indicators” representing wine-making regions.
Governments, particularly in Europe and Latin America, had protested that .wine and .vin should not be allowed to launch until areas such as Rioja and Champagne were given special privileges.
Last October, ICANN CEO Fadi Chehade told the French government that it was negotiating with applicants to get these protections included in the contracts.
Either Donuts has agreed to such protections, or the EU and wine-makers have gotten bored of complaining.
My feeling is the former is probably more likely, which may be controversial in itself.
There is no international agreement on GI protection — the US and Australia opposed the EU’s position on .wine — so this may be seen as a case of ICANN creating new rights where none previously existed.
Is The Hunger Games’ new .movie domain illegal?
Donuts may have launched its best new gTLD anchor tenant in violation of ICANN rules.
The company revealed earlier this week that The Hunger Games movies are using thehungergames.movie to promote the fourth and final installment of the wildly successful “trilogy”.
The domain name even features in the trailer for the film, which currently has over 1.7 million YouTube views.
But it has been claimed that Donuts activated the domain in the DNS two weeks before it was allowed to under its ICANN registry contract.
It boils down to “controlled interruption”, the controversial mechanism by which registries mitigate the risk of potentially harmful name collisions in the DNS.
Under ICANN’s rules for CI, for 90 days registries have to implement a wildcard in their zone file that redirects all domains other than nic.[tld] to 127.0.53.53 and your-dns-needs-immediate-attention.[tld].
“The Registry Operator must not activate any other names under the TLD until after the 90-day controlled interruption period has been completed,” the rules say, in bold text.
Donuts’ .movie was delegated on or around March 26, which means when thehungergames.movie was activated there were still about two weeks left on the .movie CI clock.
As far as I can tell from reading ICANN documentation on CI, there are no carve-outs for anchor tenants.
The .movie zone file has five other domains related to The Hunger Games in it — the only names other than nic.movie — but they don’t seem to resolve.
There’s no actual security or stability risk here, of course.
If .movie had used the old method of blocking a predefined list of identified name collisions, thehungergames.movie would not have even been affected — it’s not on .movie’s list of collisions.
However, if ICANN decides rules have been broken and Donuts is forced to deactivate the domain, it would be a painfully embarrassing moment for the new gTLD industry.
It can perhaps be hoped that ICANN’s process of investigating such things takes about two weeks to carry out.
I’ve contacted Donuts for comment and will provide an update if and when I receive any additional information.
New gTLD trade group launches
A group of new gTLD registries have got together to form the TLD Operator Community, a new “think tank” devoted to the commercial aspects of running new TLDs.
According to its web site:
The TLD Operator Community is designed to provide all new TLD applicants with an opportunity to share their experiences, learn from each other and focus on the commercial realities of operating a TLD – away from the confines of ICANN, policy or technical discussions.
The group appears to be coordinated right now by ARI Registry Services.
The distinction between the TLD Operator Community and the Domain Name Association appears to be that the DNA has more of a focus on outreach and education beyond the industry.
The new group will hold an introductory webinar June 30 (or July 1, depending on your time zone) featuring speakers from Donuts, Vox Populi, dotBerlin, Barclays and others.
Are new gTLD registries ripping off brands with unfair sunrise fees?
Forget .sucks — several less controversial new gTLD registries have come under fire from the likes of Google, Facebook and Adobe for charging sunrise fees as high as $17,000 for domains matching famous trademarks.
According to figures supplied to DI by ICANN’s Business Constituency, the domain instagram.love carries a $17,610 “Premium Name Fee” during the current sunrise period.
Instagram is of course the photo sharing service belonging to Facebook, and to the best of my knowledge not a dictionary word.
The domain facebook.love has a $8,930 fee, these figures show, while google.love costs $6,610, both in addition to sunrise fees of $350 and annual fees of $60.
The regular sunrise fee for .love comes in at $265 at some registrars.
The new gTLDs .design, .video, .wang, .wein, .rich and .top also seem to carry very high fees for brands such as Facebook, according to the BC’s numbers.
Google recently filed a public comment with ICANN which warned:
some registry operators are taking advantage of rights owners during Sunrise by charging exorbitant and extortionate Sunrise registration fees. Although such pricing policies are not strictly within the ICANN compliance mandate, they contravene the spirit of the RPMs [rights protection mechanisms], damage ICANN’s reputation, harm consumers in contravention of ICANN’s mandate to promote the public interest, and create disincentives for rights owners to take advantage of the Sunrise period
Similar comments were sent by the Intellectual Property Constituency, BC, and others.
The issue of registries charging super-high “premium” fees for trademarked names has been on the radar of the BC and the IPC since at least 2013.
It seems that in at least some cases, trademark owners are being hit with the higher fees because their marks are dictionary words that the registry has identified as premium due to their regular meaning.
For example, adobe.design is on the list of names provided by the BC, carrying a $1,175 registration fee.
But Andrew Merriam, director of business development at .design registry Top Level Design, denied that the software company is being targeted. Instead, he said “adobe” refers to the material used in architecture — its dictionary meaning.
He said: “Stucco.design, concrete.design, wood.design, granite.design (and many other materials and building styles) are all on the premium list, at varying prices. In fact, adobe.design is priced on the lower end of all these materials.”
Merriam said the registry’s premium fee for adobe.design is actually $250 and speculated that $1,175 could be the price quoted by Adobe’s brand protection registrar post-markup. It was $349 at Go Daddy, he said.
In other cases, trademarks may have found their way on to premium lists due to a lack of manual vetting by the registry, rather than nefarious targeting.
In the case of instagram.love, Evatt Merchant of .love registry Merchant Law Group told DI that Facebook can buy the name for the normal sunrise fee if it wants.
He told DI that trademark owners should contact the registry if they believe their marks have been wrongly given premium prices. He said:
While it is possible that some brand terms that are frequently googled have ended up on the premium list, valued based on their Google search frequency, there is a simple solution. During the sunrise period, brands seeking non-dictionary trademarked domain names can contact the registry so that a review of individual sunrise pricing can occur. As has already occurred, such requests will often result in the .LOVE TLD voluntarily offering to reduce their sunrise application cost to the base sunrise price and that would certainly be the case for Instagram.
ICANN’s does not regulate pricing in new gTLDs, but nevertheless the IPC and BC and their members have asked ICANN to include premium pricing of trademarked names in its upcoming review of rights protection mechanisms.
Is the Defending Internet Freedom Act pro-crime?
The Defending Internet Freedom Act of 2015, introduced to the US Congress last month, contains a provision that could be interpreted as pro-pron, pro-piracy or even just pro-crime.
The act is designed to prevent the US giving up its oversight of ICANN/IANA unless certain quite strict conditions are met.
It’s a revised version of a bill that was introduced last year but didn’t make it through the legislative process.
Like the 2014 version, it says that the US cannot sever ties with ICANN until its bylaws have been amended in various ways, including:
ICANN is prohibited from engaging in activities unrelated to ICANN’s core mission or entering into an agreement or modifying an existing agreement to impose on a registrar or registry with which ICANN conducts business any condition (such as a condition relating to the regulation of content) that is unrelated to ICANN’s core mission.
It’s the “regulation of content” bit that caught my eye.
Presumably written as a fluffy, non-controversial protection against censorship, it ignores where the real content regulation conversations are happening within the ICANN community.
It’s a constant mantra of ICANN that is “doesn’t regulate content”, but the veracity of that assertion has been chipped away relentlessly over the last several years by law enforcement, governments and intellectual property interests.
Today, ICANN’s contracts are resplendent with examples of what could be argued is content regulation.
Take .sucks, for a timely example. Its Registry Agreement with ICANN contains provisions banning pornography, cyber-bulling and parked pages.
That’s three specific types of content that must not be allowed in any web site using a .sucks domain.
It’s one of the Public Interest Commitments that were voluntarily put forward by .sucks registry Vox Populi, but they’re still enforceable contract provisions.
Using a dispute resolution process (PICDRP), ICANN would be able to levy fines against Vox Pop, or terminate its contract entirely, if it repeatedly allows porn in .sucks web sites.
This sounds quite a lot like content regulation to me.
It’s not just .sucks, of course. Other registries have PICs that regulate the content of their gTLDs.
And every contracted new gTLD registry operator has to agree to this PIC:
Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.
It’s convoluted, but it basically indirectly forces (via registrars) new gTLD domain registrants to, for example, agree to not infringe copyright.
The PIC is paired with a provision (3.18) of the 2013 Registrar Accreditation Agreement that requires all registrars to investigate and “take necessary and appropriate actions” in response to abuse reports within 24 hours of receipt.
Section 3.18 is essentially the RAA mechanism through which ICANN can enforce the PIC from the RA.
This is currently one of the most divisive issues in the ICANN community, as we witnessed during the recent Congressional hearings into ICANN oversight.
On the one hand, big copyright owners and online pharmacy watchdogs want ICANN to act much more ruthlessly against registrars that fail to immediately take down sites that they have identified as abusive.
On the other hand, some registrars say that they should not have to engage in regulating what content their customers publish, at least without court orders, in areas that can sometimes be amorphously grey and fuzzy.
Steve Metalitz, from a trade group that represents the movie and music industies at ICANN, told the US Congress that registrars are dismissing piracy reports without investigating them, and that “unless registrars comply in good faith, and ICANN undertakes meaningful and substantive action against those who will not, these provisions will simply languish as empty words”.
John Horton from pharmacy watchdog used the same Congressional hearing to out several registrars he said were refusing to comply with 3.18.
One Canadian registrar named in Horton’s testimony told DI that every complaint it has received from LegitScript has been about a web site that is perfectly legal in Canada.
In at least some cases, it seems that those pushing for ICANN to more stringently regulate content may have “internet freedom” as the least of their concerns.
If the Defending Internet Freedom Act becomes law in the US, perhaps it could prove a boon to registries and registrars upset with constant meddling from rights owners and others.
On the other hand, perhaps it could also prove a boon for those operating outside the law.
ICANN’s new gTLD survey gives new gTLD awareness numbers
ICANN has released the results of a huge survey focusing on awareness and trust in gTLDs new and old.
The headline number is 46% — that’s the how many of the 6,144 international survey respondents said they were aware of new gTLDs.
The respondents were asked this question:
As you may or may not know, new domain name extensions are becoming available all the time. These new extensions are called new gTLDs.
Which of the following new gTLDs, if any, have you heard of? Please select all that apply.
They were presented with a list comprising .email, .photography, .link, .guru, .realtor, .club and .xyz. These were the biggest seven Latin-script new gTLDs when the survey was developed in January.
Tellingly, .email and .link stole the show, with 28% and 24% awareness respectively. The other five options ranged from 13% for .club to 5% for .xyz.
I think the numbers were influenced by some respondents not quite understanding the question. People are familiar with email and with links as internet concepts, which may have swayed the results.
Akram Atallah, president of ICANN’s Global Domains Division, acknowledged this potential problem in ICANN’s announcement last night, saying:
The survey found that domains with an implied purpose and functional associations, such as .EMAIL, were most often recalled by Internet users. While some of the drivers may be linked to familiarity and general association versus awareness of the extension, we believe it’s a signal that people are receptive to the names.
It’s also notable that, almost 15 years after launch, .biz and .info only have 50% awareness, according to the survey. For .mobi. .pro, .tel and .asia, all released between 2004 and 2008, the awareness was at 37%.
It’s not impossible that new 2012 round — which has generated thousands of headlines — has raised more awareness of new gTLDs.
The survey found that 38% of internet users who were aware of new gTLDs have visited a .email web site in the last year. The number was 28% for .link.
The survey also found that 52% of respondents would consider using a new gTLD if they were setting up a web site in the next six months. The number ranged from 40% for .email to 22% for .xyz.
Among the plethora of other findings, the survey discovered that only 92% of internet users have heard of .com.
Go figure.
The entire survey, carried out by Nielsen, can be found here.
UPDATE: This article was substantially revised a few hours after publication to remove references to the numbers being “nonsense”. This was due to my misreading of the survey questionnaire. My apologies for the confusion.
Two more legacy gTLDs agree to use URS
The registries behind .pro and .cat have agreed to new ICANN contracts with changes that, among other things, would bring the Uniform Rapid Suspension policy to the two gTLDs.
Both gTLD Registry Agreements expire this year. Proposed replacement contracts, based heavily on the base New gTLD Registry Agreement, have been published by ICANN for public comment.
They’re the second and third pre-2012 gTLDs to agree to use URS, which gives trademark owners a simpler, cheaper way to have infringing domains yanked.
Two weeks ago, .travel agreed to the same changes, which drew criticisms from the organization that represents big domain investors.
Phil Corwin of the Internet Commerce Association is worried that ICANN is trying to make URS a de facto consensus policy and thereby bring it to .com, which is still where most domainers have most of their assets.
Following DI’s report about .travel, Corwin wrote last week:
this proposed Registry Agreement (RA) contains a provision through which staff is trying to preempt community discussion and decide a major policy issue through a contract with a private party. And that very big issue is whether Uniform Rapid Suspension (URS) should be a consensus policy applicable to all gTLDs, including incumbents like .Com and .Net.
…
ICANN needs to hear from the global Internet community, in significant volume, that imposing the URS on an incumbent gTLD is unacceptable because it would mean that ICANN staff, not the community, is determining that URS should be a consensus policy and thereby undermining the entire bottom-up policy process. Domain suspensions are serious business – in fact they were at the heart of the SOPA proposal that inspired millions of emails to the US Congress in opposition.
The concern about .com may be a bit over-stated.
Verisign’s current .com contract is presumptively renewed November 2018 provided that it adopts terms similar to those in place at the five next-largest gTLDs.
Given that .net is the second-largest gTLD, and that .net does not have URS, we’d have to either see .net’s volume plummet or at least five new gTLDs break through the 15 million domains mark in the next three years, both of which seem extraordinarily unlikely, for .com to be forced to adopt URS.
However, if URS has become an industry standard by then, political pressure could be brought to bear regardless.
Other changes to .pro and .cat contracts include a change in ICANN fees.
While .pro appears to have been on the standard new gTLD fee scheme since 2012, .cat is currently paying ICANN $1 per transaction.
Under the new contract, .cat would pay $0.25 per transaction instead, but its annual fixed fee would increase from $10,000 to $25,000.
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